Powe v. Wolfenbarger

Filing 17

ORDER granting 15 Petitioner's Motion to Stay Proceedings and Administratively Closing Action. Signed by District Judge Denise Page Hood. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRANDON POWE,
Petitioner,

CASE NO. 11-11875
HONORABLE DENISE PAGE HOOD

v.
HUGH WOLFENBARGER
Respondent.
________________________________________/

ORDER GRANTING PETITIONER'S MOTION TO STAY PROCEEDINGS
and
ADMINISTRATIVELY CLOSING ACTION
I.
This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Brandon
Powe ("Petitioner"), raises claims asserting that he is being held in violation of his constitutional
rights. Petitioner was convicted in the Wayne Circuit Court of second-degree murder and possession
of a firearm during the commission of a felony. The matter is before the Court on Petitioner's motion
to stay his habeas proceeding so that he may return to the state courts and exhaust additional claims.
For the reasons stated below, the Court grants Petitioner's motion.
II.
Following Petitioner’s conviction, he filed a claim of appeal in the Michigan Court of
Appeals. On November 17, 2009, the Michigan Court of Appeals issued an unpublished per curiam
opinion affirming Petitioner’s convictions and sentences. People v. Powe, Michigan Court of
Appeals No. 286175. On April 27, 2010, the Michigan Supreme Court denied Petitioner’s
application because it was not persuaded that the questions presented should be reviewed. People

v. Powe, Michigan Supreme Court No. 140369. For statute-of-limitations purposes, his conviction
became final 90 days later, when the time for filing a petition for writ of certiorari expired. See
Jimenez v. Quarterman, 555 U.S. 113, 120 (2009). Petitioner’s present habeas application is dated
April 25, 2011.
III.
Petitioner’s motion states that he wishes to file a motion for relief from judgment in the trial
court raising new claims of ineffective assistance of appellate counsel and new evidence. He
requests that his habeas petition be stayed and held in abeyance so that if he is unable to obtain relief
in the state courts, he can include these new claims in this action.
A prisoner filing a petition for a writ of habeas corpus under 28 U.S.C. §2254 must first
exhaust all state remedies. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) ("state prisoners
must give the state courts one full fair opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate review process"); Rust v. Zent, 17 F.3d 155,
160 (6th Cir. 1994). To satisfy this requirement, the claims must be "fairly presented" to the state
courts, meaning that the prisoner must have asserted both the factual and legal bases for the claims
in the state courts. See McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); see also Williams
v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (citing McMeans). The claims must also be presented
to the state courts as federal constitutional issues. See Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir.
1984). A Michigan prisoner must properly present each issue he seeks to raise in a federal habeas
proceeding to both the Michigan Court of Appeals and the Michigan Supreme Court to satisfy the
exhaustion requirement. See Welch v. Burke, 49 F. Supp. 2d 992, 998 (E.D. Mich. 1999); see also
Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). While the exhaustion requirement is not

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jurisdictional, a "strong presumption" exists that a petitioner must exhaust all available state
remedies before seeking federal habeas review. See Granberry v. Greer, 481 U.S. 129, 131, 134-35
(1987). The burden is on the petitioner to prove exhaustion. Rust, 17 F.3d at 160.
A federal district court has discretion to stay a petition containing both exhausted and
unexhausted claims to allow a petitioner to present unexhausted claims to the state courts and then
return to federal court on a perfected petition. See Rhines v. Weber, 544 U.S. 269, 276 (2005). Stay
and abeyance is available only in "limited circumstances" such as when the one-year statute of
limitations poses a concern, and when the petitioner demonstrates "good cause" for the failure to
exhaust state remedies before proceeding in federal court, the petitioner has not engaged in
intentionally dilatory litigation tactics, and the unexhausted claims are not "plainly meritless." Id.
at 277.
Petitioner has shown the need for a stay. The one-year statute of limitations applicable to
federal habeas actions, see 28 U.S.C. § 2244(d), poses a concern. The one-year limitations period
does not begin to run until 90 days after the conclusion of direct appeal, see Jimenez, 555 U.S. at
120 (stating that a conviction becomes final when "the time for filing a certiorari petition expires");
Lawrence v. Florida, 549 U.S. 327, 333 (2007). The Michigan Supreme Court denied Petitioner
leave to appeal on April 27, 2010, and the time for seeking a writ of certiorari with the United States
Supreme Court expired 90-days later, on about July 27, 2010. The instant petition was signed on
April 25, 2011. About nine months of the one-year period had expired when Petitioner instituted this
action.
While the time in which this case has been pending in federal court is not statutorily tolled,
see Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (a federal habeas petition is not an "application

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for State post-conviction or other collateral review" within the meaning of 28 U.S.C. § 2244(d)(2)
so as to statutorily toll the limitations period), such time is equitably tolled. See, e.g., Johnson v.
Warren, 344 F. Supp. 2d 1081, 1088-89 (E.D. Mich. 2004). The limitations period will also be tolled
during the time in which any properly filed post-conviction or collateral actions are pending in the
state courts. See 28 U.S.C. § 2244(d)(2); Carey v. Saffold, 536 U.S. 214, 219-221 (2002). Given that
about three months of the one-year period remains, Petitioner has sufficient time to exhaust
additional issues in the state courts and return to federal court should he wish to do so.
If Petitioner has, as he suggests, a new federal claim, it should be presented to, and addressed
by, the state courts in the first instance. Given such circumstances, a stay is warranted.
IV.
Accordingly, IT IS ORDERED that Petitioner's motion for stay and abeyance of his habeas
proceedings (Docket Entry #15) is GRANTED.
IT IS ORDERED that this action is STAYED and HELD IN ABEYANCE pending
Petitioner’s exhaustion of his claims before the state courts. After exhaustion, Petitioner may file
a motion lifting the stay and reopening the action.
IT IS FURTHER ORDERED that this action is ADMINISTRATIVELY CLOSED on the
Court’s docket pending any motion to lift the stay and reopen the action.

Dated: February 6, 2013

S/Denise Page Hood
Denise Page Hood
United States District Judge

I hereby certify that a copy of the foregoing document was served upon counsel of record on
February 6, 2013, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager
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